Subject: Implementing the National Institute for
Occupational Safety and Health’s (NIOSH) December 2006 Report.

Background: An amendment to the National Defense
Authorization Act (NDAA)(Pub. L. 108-375) for Fiscal Year 2005, signed into law
on October 28, 2004, mandated that NIOSH update their report regarding residual
contamination at facilities
covered by the Energy Employees Occupational Illness Compensation Program Act(EEOICPA).
A prior update to that report (“Report on Residual Radioactive and Beryllium
Contamination at Atomic Weapons Employer Facilities and Beryllium Vendor
Facilities”) was issued in June 2004 and was the basis for EEOICPA Bulletin No.
05-02. In December 2006, NIOSH issued the mandated update to the report. This
Bulletin gives guidance on implementing their revised findings.

There are significant differences
between NIOSH’s June 2004 and December 2006 reports. These differences include:

• The creation of “gaps” in periods of qualifying employment
for atomic weapons employees due to suspending residual contamination periods
during DOE remediation.

•Establishment
of qualifying employment for employees of as-yet unidentified additional
employers, as explained in this paragraph. The October 2004 amendment to
the Act added 42 U.S.C. § 7384l(3)(B) which expanded the definition of an
“atomic weapons employee” to include a person employed at a facility where NIOSH
finds that there is a potential for significant residual contamination outside
of the period in which weapons-related production occurred, if the person was
employed ”by an atomic weapons employer or subsequent owner or operators of a
facility described” in the NIOSH report (emphasis added), and “during a period,
as specified in such report or any update to such report, of potential for
significant residual radioactive contamination at such facility.”
The Division of Energy Employees Occupational Illness Compensation (DEEOIC)
currently does not know the identities of these subsequent owners or operators
of the various AWE facilities for which the employees thereof may now be
considered for the benefits available through EEOICPA.

• Characterization of the level of exposure in relation to the
potential for compensation. The
December 2006 report states,
“All facilities for which significant residual contamination was determined to
be present after the period of weapons related production are considered to
have the potential of causing an employee who was employed at such facility
only during the residual contamination period to contract a cancer or beryllium
illness compensable under subtitle B of the (EEOICPA) of 2006.” This marks a
contrast to their June 2004 report in which NIOSH said that due to the nature
and levels of radioactivity at most sites, employment during just the residual
contamination period will probably not provide sufficient dose to result in a
probability of causation of at least 50% based upon NIOSH cancer risk computer
models. In the December 2006 report
NIOSH reiterated the change by stating “If NIOSH determined there was ‘the
potential for significant contamination’ at a designated facility, then NIOSH determined that such
contamination ‘could have caused or substantially contributed to the cancer of
a covered employee with cancer.’”

Purpose: To provide procedures for processing claims
based on AWE employment at sites
identified by NIOSH as having a period of potential residual contamination.

Applicability: All staff.

Actions:

1. Many claims that
were previously denied due to AWE covered time periods may need to be reopened
and forwarded to NIOSH for the preparation of a dose reconstruction. This
includes claims that were denied on the basis of having no covered employment
as well as claims denied for a less than 50% probability of causation using a
dose reconstruction which did not fully consider dose from residual
contamination.

The changes brought about by this
report affect previously completed claims as well as current and future
claims. The effect on previously adjudicated claims may be subtle, as the
claim may not have been denied strictly for “no covered employment.” For
example, DEEOIC may have advised a claimant that the claimed employment was not
qualifying and concurrently asked for medical evidence of the claimed cancer.
In the absence of a reply, the claim may have been denied due to the lack of
evidence of cancer, or the claimant may have opted to withdraw the claim.
Clearly, however, the claimant may have chosen not to pursue the claim because
of being told of the then-shortcomings of the reported employment. As such,
previously denied claims must be reviewed and adjudicatory judgment used in
determining the current appropriate action.

Claims Examiners must review all
claims which referenced the claimed employment as not being covered (but for
which atomic weapons employee status may now be established), as this may have
dissuaded claimants from perfecting other eligibility factors in their claims.

2.Attachment 1
provides a complete comparison of the current NIOSH report (right-most column)
and the previous report (the column next to it). This
attachment therefore provides a quick reference to what has changed in terms of
covered employment years at all AWE facilities and should serve as a guide for making determinations on whether
an employee now has increased years of covered employment. An entry of “N/A”
shows that NIOSH determined there was little potential for significant residual
contamination. For those sites shown as having potential residual
contamination to the “present,” NIOSH defined that date as July 2006. In reviewing a given claim the CE must
utilize the list and identify the site where the employee worked, note the NIOSH-designated residual contamination period and compare
if and how it has changed since the previous report, and proceed as
appropriate.

Note also that the DOE website has
not yet been updated and therefore the CEs are not to rely on that website for
determinations of covered years at AWE facilities. Although it is anticipated that the
website will be updated as part of implementation of the NIOSH report, CEs are
reminded that even once it is updated, information on the DOE website provides
generalized facility data and is not considered conclusive.

3. The DEEOIC has identified all affected
claims; all non-granted closed claims with employment at an AWE site with
residual contamination and whose period of employment is not entirely prior to
the end of AWE activity (weapons-related) years. This list will be identified
for purposes of this Bulletin as the “2006 NIOSH-designated Residual
Contamination Master Claim List” (Master List). All claims on this list must be
reviewed for potential reopening. To avoid duplicate reviews of cases as part
of this effort we will utilize a tracking sheet and a “folder flash sheet” (Attachment 2), discussed later in this Bulletin.

4. For purposes of implementing this Bulletin,
the Director of DEEOIC has delegated limited authority for the reopening of
claims to each of the four District Directors. This authority is strictly limited
to claims in which the basis for reopening is the establishment of covered
employment based on residual radioactive contamination at an AWE site. Any
claims deemed questionable or unusual by the District Director that appears to
be in posture for a reopening may still be referred to the Director of DEEOIC.
The Director’s Orders for Reopening by the District Directors should utilize
language from the current report by NIOSH, as appropriate. (Attachment 3)

Such reopenings are
to be limited to claims for cancer and not based on denials for reasons other
than “no covered employment” and/or “<50% probability of causation.” For
example, if a Part B claim was denied because some claimed conditions are not
covered and because a claimed cancer had a <50% POC, the reopening should be
limited to the claim for cancer.

Claims previously
denied on the basis of <50% POC first need to have the prior dose
reconstruction summary critiqued to determine if the facility’s residual
contamination had already been taken into consideration in the prior dose
reconstruction for the claim. If it clearly was already factored-in (in its
entirety), no reopening is in order. If it clearly was not factored-in, the claim
should be reopened. If a particular dose reconstruction is unclear, forward
the dose reconstruction to a National Office Health Physicist for review to
determine if the NIOSH-designated residual
contamination period was fully taken into consideration by NIOSH in the dose
reconstruction.

An example of the
type of case in which the “newly designated” residual period should have
already been factored in are those claims at AWE facilities for
which the previous NIOSH report shows a “+” or an “indistinguishable.” If the
NIOSH report clearly shows that NIOSH calculated radiation dose for both
internal up until the date of diagnosis and external dose through the end of
contaminated employment, which may fall in the “newly designated” residual
period, those cases will not need to be reopened.

5. Because the list of claims
needing to be reviewed as part of this effort is extensive, a triage approach
is suggested as a means of systematically addressing cases on the Master List.
The categories and their generalized order of priority are as follows:

A) In 2005
the DEEOIC contacted 228 claimants identified as having denied claims impacted
by NIOSH’s June 2004 report on AWE sites with residual contamination. With but
a few exceptions, these should all be reopened. The exceptions to automatic
reopening of the 228 from this list are as follows:

i. Those
claims based solely on employment at AWE facilities that have been delisted, per Bulletin No.
07-03.

ii. Those
claims for which payment has been approved.

iii. Those
claims based solely on employment at AWE facilities for which the time period either decreased
or was revised to “N/A” in the updated report.

iv. Those
claims previously reopened which are still pending or underwent dose
reconstruction and the DR was recent enough that it gave full credit for dose
from residual contamination.

v. The
claimant is deceased, though other known and eligible survivors may be
solicited.

With regard
to claims in this category, the Director of DEEOIC will be sending a letter to
the claimants providing information about the reason for the reopening. The
letter will inform the claimants that they will be contacted regarding their reopenings
by the District Office.

B)
Additionally, it is expected that once claimants learn of NIOSH’s recent report
they will contact the district offices. These claimants are to receive a
priority review of their case and a determination of whether the claim warrants
reopening. If a claimant requests reopening, existing procedures of PM 2-1400
apply except as modified by Action Item #4 of this Bulletin.

C) In 2005,
the DEEOIC also identified another group of claimants who potentially had
employment within the timeframes outlined in NIOSH’s June 2004 report’s
findings but whose claims were denied by FAB on a basis other than “no covered
employment.” Because these denials were for reasons not related to their
covered years of employment, these claimants were not previously sent a letter
in which they were invited to request a reopening of their case. Although DEEOIC
did not issue letters to these claimants, their claims must be reviewed in
their entirety. As with other claims affected by this Bulletin, determine if
the NIOSH-designated residual contamination period adds
covered employment to the claim. If it does, determine if the material in the
file, in conjunction with the newly added residual period now justifies
reopening the claim. If so, the District Director must presently reopen the
claim.

If
the claim does not currently warrant reopening, determine whether DEEOIC may
have notified the claimant of the inadequacies of claimed employment. This may
have resulted in the claimant abandoning further attempts to establish his or
her claim. If the CE determines that the claimant was notified of the lack of
covered employment, it will be necessary to issue a letter advising the
claimant that the reported employment may now be qualifying and invite a
request for the reopening of the claim by submitting new/additional evidence that
satisfies the prior reason(s) for the claim’s denial. (Attachment 4) In some
cases, such as those in which the employee has died and there are no survivors,
the appropriate action may be to do nothing.

D) The
list created by DEEOIC of potentially affected claims also includes a group of
claimants whose claims were received and/or denied after the implementation of Bulletin
No. 05-02, and for which there thus may now be additional years of potentially
covered employment. Due to the wide range of possible case scenarios, these
cases need a complete review and require further action “as appropriate.”
Similar to the previously identified groups, actions can range from reopening the
claim, to notifying the claimant of the change in the employment’s qualifying
status, to documenting the review and not further contacting the claimant. The
review of these claims may include critiquing a prior dose reconstruction summary
to determine if the facility’s residual contamination had already been taken
into consideration in the prior adjudication of the claim (either because of
NIOSH acting as stated in Bulletin No. 05-02 or their triaging of the DR and
over-use of exposure).

E)
Cases serendipitously identified
during normal case handling and all remaining cases from the DEEOIC Master List
of employees at the affected AWE facilities will similarly require a review as
outlined here because of the revised NIOSH-designated residual contamination periods.

F)
For all categories under this action item number, if the claimant has died, the
claim is not to be reopened, though known and eligible survivors may be
solicited.

6. Given the number
and complexity of the task of reviewing all potentially affected cases,
tracking is an essential part the process. The tracking process is as follows:

A)
The CE begins by identifying a case that is affected by this Bulletin and
conducts a review of that case.

B)
The CE then fills out Part A of the folder flash sheet (Attachment 2) and
indicates what the recommended action is and why.

C)
Each DO must designate an individual to serve as the central coordinator for
the “Master List.”

D)
The CE makes a copy of the partially filled-out folder flash sheet and sends it
to the designated coordinator for the Master List in their DO, who makes a
notation on the Master List, “CE review complete on [date].” The original
folder flash sheet stays in the file so that when someone else picks up the
file they will know what work, vis-à-vis this residual report, has already been
completed.

E)
The file moves to DO supervisory personnel who will make a final determination
on the appropriate action on the case and fill out Part B of the folder flash
sheet once the appropriate action has been taken (Director’s Order or letter to
the claimant, or no action). A second copy of the flash sheet, now completed,
is sent to the same central coordinator to whom the first photocopy was sent.

F) The DO designated coordinator notes the
end result of the review on the Master List and the date thereof.

Cases are tracked when
the action by the CE is recommended (ie. the file has been reviewed) and then
again upon completion of whatever action is appropriate (even if the decision
is that no action is needed). The
progress of this review should be reported to the National Office on a monthly
basis until all cases on the list have been completed.

If a case file has
multiple volumes, place the folder flash sheet in the “active” B file.

7. A new ECMS Code for reopening
will be added to the system for purposes of tracking cases to which this Bulletin
pertains. The new code is MA (for NIOSH-Added AWE years). The
following is how cases should be coded in ECMS for purposes of this Bulletin:

A. If a claimant requests a
reopening, the CE should use the MC code, with the date of the letter from the
claimant. If the reopening is granted, the CE uses the MA code and the date of
the reopening. If the reopening is not granted, use the MX code.

B. For all other reopenings
under this Bulletin, the CE is to use only the MA code.

8. With regard to ECMS, the current employment
classification code entries (currently Y / N) for AWE employment will now include
the option of R, representing employment entirely outside of weapons-related
production and partially or entirely during the site’s period of residual radioactive
contamination. An “R” represents that employment at an AWE site is qualifying
solely on the basis of Residual contamination. This field must be
backfilled for prior claims as encountered.

If employment at multiple AWE sites
is claimed and at least one such site’s qualifying employment is solely due to residual
radiation, utilize the “R” code. Continue to comply with existing procedures
in PM 2-1500.4a(2)(b) by entering *NV in the first three spaces of the
“Worksite Desc” “Note” field if that site’s employment is not verified. In the
absence of this entry the dates of employment are presumed to have been
verified.

9. Be cognizant of the fact that
employment based on residual radioactive contamination at an AWE site is not
limited to employees of the Atomic Weapons Employer, but also to those employed
by subsequent owners or operators of the facility. This
presents unique challenges in identifying and verifying employment, as the name
of the property and/or its owner and/or its operator may change numerous
times. For claims which
now identify employment at a “subsequent owner or operator” of an AWE facility,
the NO will provide additional guidance at a later date on how employment at
these entities is to be verified. If any questions on this arise before such
guidance is issued, direct those to the Policy Branch. As with employment during weapons-related production,
subcontractor employment with subsequent owners or operators at an AWE facility
does not result in coverage during a period of residual radioactive
contamination.

10. FAB personnel must be vigilant
in identifying cases with a recommended decision to deny when the claim is
based on employment at an AWE site with residual contamination. If employment
has become covered due to the changes related to NIOSH’s December 2006 report,
consideration may be given to remanding the claim if the reason for denial is
related to that employment. If the reason for denial is other than employment,
but by advising the claimant of the shortcomings of employment the district
office may have dissuaded the perfecting of other aspects of the claim, the
final decision should clearly mitigate the issue of qualifying employment
according to the facts of the particular claim.

Disposition: Retain until incorporated in the Federal
(EEOICPA) Procedure Manual.